AILA Testimony on INS Reorganzation

On The Immigration and Naturalization Service: How Should
It Be Restructured?

Before the Senate Judiciary Committee

May 2, 2002Washington, D.C.

Mr. Chairman and distinguished Members of the Subcommittee, I am Stephen
Yale-Loehr. I teach immigration and refugee law at Cornell Law School in Ithaca,
New York, and am co-author of Immigration Law and Procedure, a 20-volume
immigration law treatise that is considered the standard reference work in this
field of law. I am honored to be here today representing the American
Immigration Lawyers Association (AILA). AILA is the immigration bar association
of more than 7,800 attorneys who practice immigration law. Founded in 1946, the
association is a nonpartisan, nonprofit organization and is an affiliated
organization of the American Bar Association (ABA).

AILA members take a very broad view on immigration matters because our member
attorneys represent tens of thousands of U.S. families who have applied for
permanent residence for their spouses, children, and other close relatives to
lawfully enter and reside in the United States. AILA members also represent
thousands of U.S. businesses and industries that sponsor highly skilled foreign
professionals seeking to enter the United States on a temporary basis or, having
proved the unavailability of U.S. workers, on a permanent basis. Our members
also represent asylum seekers, often on a pro bono basis, as well as athletes,
entertainers, and international students.

Given AILA's concerns with all aspects of our immigration function, I am
especially pleased to be here today to express AILA's views on how best to
restructure the Immigration and Naturalization Service (INS). This is neither an
academic exercise nor one with solely bureaucratic implications. Rather,
reorganization has consequences for U.S. citizens, legal permanent residents,
refugee and asylees, American business and our national security. What is at
stake here is whether people will be able to naturalize, get their green cards,
and find safe haven; whether our economy will be strengthened by needed foreign
workers; and whether the INS will contribute its share to enhancing our
security.

INS restructuring tops the congressional agenda for many reasons, not the
least of which is that the agency has been unsuccessful in fulfilling its dual
missions of enforcement and adjudications and is ill-equipped to respond
appropriately to our nation's security needs post-September 11. Several bills
have been introduced to reform the agency that reflect these concerns, and the
INS is in the process of implementing the Bush Administration's own
administrative proposal.

ESSENTIAL ASPECTS OF A SUCCESSFUL REORGANIZATION OF THE INS

As Congress and the Administration address restructuring the INS, it is
important to emphasize the following points:

Passing legislation to restructure the INS is one step in a multi-step
process, the end result of which needs to be effective, efficient, and fair
adjudications and enforcement. Before restructuring, the agency needs to
eliminate its current huge backlogs. The INS also must implement internal
management and cultural changes essential for meaningful reform.

Congress can either make or break any restructuring plan due to its
central role in creating and maintaining our federal immigration function.
Congress must end its practice of sending the agency conflicting,
complicated, unfunded and incomplete mandates that have severely diminished the
INS's ability to fulfill its missions. Furthermore, many of these mandates stem
from rapid and often contradictory changes in our immigration laws and reflect
the absence of an enduring consensus on immigration issues and priorities.
Congress cannot expect the INS to effectively implement policies that are
contradictory and change rapidly. No reorganization can succeed if Congress does
not change its relationship with the INS. In fact, without such change, we will
be right back to where we are today, no matter which reorganization plan is
implemented.

Any meaningful restructuring of the immigration function needs to include
adequate funding, especially given the increased demands resulting from the
September 11 attacks. Since the INS's enforcement and adjudication functions
are both in the national interest, each should receive from congressional
appropriations the funding needed to fulfill mandates. While the enforcement
function now receives appropriated funding, the adjudications function is
supported largely through user fees. The funding level achieved through these
fees is inadequate and must be supplemented by direct federal appropriations.
Finally, adequate funding needs to be appropriated to create reliable
information systems that are regularly updated.

While an effective, efficient and fair INS restructuring is essential,
such reform will not in itself address many pressing concerns. Reforming the
INS will not alter the fact that U.S. immigration policy needs to be changed to
make legality the norm. Currently families face long delays before they can be
reunited, no visa exists to bring in certain kinds of needed workers, and the
1996 immigration laws eliminated due process for many legal permanent residents.
Reforming the INS will not address these and other concerns, but leaving these
concerns unresolved will stand in the way of a successful reorganization of the
agency.

The Administration and Congress need to undertake INS reorganization in a
way that takes into account, and does not disrupt, the enforcement and
adjudication requirements of our post-September 11 world. In our world of
security concerns, it is necessary to fully integrate our immigration functions.
Accordingly, the terrorist attacks reinforce the need for someone in charge with
clout who can articulate our nation's immigration policies, someone with more
power than the current Commissioner. They also reinforce the fact that both
adjudications and enforcement are equally in the national security interest and
are most effectively implemented when they are closely coordinated and based on
a common understanding of the law and policy.

Reorganizing the INS can and should be a nonpartisan effort that
brings together the best thinking from Republicans and Democrats, experts in the
field, and the INS's customers.

WHY WE NEED TO RESTRUCTURE THE INS, AND WHAT DIRECTION AN EFFECTIVE
RESTRUCTURING SHOULD TAKE

As the federal agency responsible for both enforcing U.S. immigration law and
adjudicating applications for naturalization and family and business
immigration, the INS needs to function efficiently, effectively, and fairly, and
with our national security concerns in mind. The September 11 attacks underscore
the fact that the agency's two functions, enforcement and adjudications, are
both in the national interest and merit the attention of and support from
Congress.

The INS has been severely criticized for failing to effectively,
consistently, professionally, and humanely enforce immigration laws through
nationally set priorities. Since September 11, many have concluded that the
agency is not up to the challenge of protecting us from terrorists because of
fears that we cannot control our borders and reports that some of the terrorists
were in legal status, others had overstayed their visas, and the status of
others is unknown because of the lack of records.

"Fortress America" is impossible to achieve and not in our national interest,
but we can better equip our immigration function to help make us safer. A smart
reorganization of the INS will help accomplish that goal, as will the passage of
the Enhanced Border Security and Visa Entry Reform bill. That legislation will
enhance our intelligence capacity and develop layers of protection so that our
land borders are not our first line of defense. AILA applauds Senators Edward
Kennedy (D-MA), Sam Brownback (R-KS), Jon Kyl (R-AZ), and Dianne Feinstein
(D-CA) for their groundbreaking efforts on the Border Security measure, and
supports its swift passage into law.

Why has the INS faltered in carrying out its missions? Both the INS and
Congress are to blame. First, the agency needs to better manage its enforcement
and adjudications responsibilities, which themselves need to be both better
differentiated and coordinated. Second, the agency has had problems dealing with
the vast and complicated changes in immigration law and the unprecedented growth
in its size and responsibilities. Third, the continued absence of adequate
resources for adjudications makes it difficult for the INS to fulfill its
responsibilities in this area. Finally, Congress has contributed to the agency's
problems because of conflicting, complicated, unfunded, and incomplete mandates.
As a result, people wait years to reunite with close family members and obtain
U.S. citizenship, and businesses are forced to wait years to fill jobs with
needed legal immigrants. Moreover, the INS has been crippled because it is
granted neither the financial resources nor adequate authority (such as access
to relevant databases of other federal law enforcement agencies) to carry out
its functions successfully.

AILA is on record urging the creation of a new, independent cabinet-level
department or agency combining all current immigration-related functions of the
INS and the Departments of Justice, State, and Labor. Such an agency should
separate, but coordinate, immigration services and enforcement functions. Just
as we have an Environmental Protection Agency to coordinate all environmental
issues, we also should have a single, cabinet level immigration agency to handle
all immigration issues. If a new, independent agency is unfeasible, AILA urges
the creation within the Department of Justice (DOJ) of two separate, but
coordinated, entities for services and enforcement. These two bureaus should be
staffed by trained individuals who can rise within the ranks of their respective
bureaus based on their experiences. (Unlike current circumstances, the two
bureaus would need to offer their employees similar benefit and retirement
packages.) Someone in charge who reports directly to the Attorney General should
oversee these bureaus. Having such a person in charge would improve
accountability by fully integrating policy making with policy implementation,
coordinate the efforts of the two bureaus, ensure direct access to high-level
officials within the executive branch, and attract top managerial talent.

PROPOSED INS RESTRUCTURING PLANS

Several plans have been proposed to restructure the INS. These plans reflect
different visions of how best to restructure the agency. Most reflect the
consensus that the enforcement and adjudication functions should be separated.
The plans differ, however, on whether there should be a strong central
authority, what the role and responsibilities of the enforcement and
adjudications divisions should be, and whether these two functions should be
coordinated. Such differences are significant and can play a leading role in
determining whether reorganization efforts will ultimately succeed or
fail.

The Bush Administration Plan: Bush Administration officials have
emphasized the need for fundamental reform of the INS, and support separating
enforcement and adjudications to address competing priorities and problematic
chains of command. On November 14, 2001, the Administration announced a
reorganization plan, the details of which include many provisions that were part
of the bipartisan legislation introduced in 1999 by Senator Edward Kennedy
(D-MA) and former Senator Spencer Abraham (R-MI). Many of these same provisions
are included in the bill soon to be introduced by Senators Kennedy and
Brownback. The Administration's plan includes a strong Commissioner, clear lines
of authority, and separation (with coordination) of the agency's enforcement and
adjudications functions.

The Border Security Agency Proposal: Homeland Security Chief Tom Ridge
reportedly has proposed a plan to consolidate some of the functions of the INS,
including enforcement, inspections and the Border Patrol, with those of the U.S.
Customs Service. Other reports indicate that the Coast Guard and some Department
of Agriculture programs would be included in this consolidated agency. Some
Members of Congress have introduced measures that would create such an
agency.

While enhanced coordination of enforcement functions (and border-related
functions, specifically) is vitally important, any inter- and intra-agency
coordination would be harmed by any proposal that splits off INS inspections and
other aspects of INS enforcement from the entity responsible for overseeing our
nation's immigration system. Such splitting off runs counter to an effective
reorganization of our immigration functions, and would threaten the necessary
balance between enforcement and adjudications. It is essential to have one
person in charge of all immigration functions to ensure the consistency of legal
opinions, interpretation, and implementation. A border security function that
subsumes the enforcement aspect of immigration but which would be separated from
adjudications would lead to ineffective enforcement and adjudications.

Rather than moving boxes around an organizational chart, some form of unified
port management may offer an effective solution, and merits further
investigation. But unified port management does not require the reinvention of
the proverbial wheel by forming a new single federal agency. Instead, it would
involve individual agencies reporting to a single port director at the ground
level for major port operation decisions. Efficiencies could be achieved through
community and agency involvement to create a port authority reporting to a
governing body comprised of agency and Administration members. Such a body would
clearly and decisively react to port of entry security, staffing,
infrastructure, and policy needs. All of these needs must be coordinated to
achieve the goal of enhanced border, and hence, national, security.

The Sensenbrenner/Gekas Bill (H.R. 3231): Insisting that the Bush
Administration's proposed reorganization of the INS could not be effective,
Representatives James Sensenbrenner (R-WI) and George Gekas (R-PA) introduced
H.R. 3231. The version of H.R. 3231 passed by the House on April 25 does include
some positive improvements on the legislation as originally introduced. We
commend Representatives Sensenbrenner and John Conyers (D-MI) for their hard
work to reform a deeply troubled agency.

H.R. 3231 would abolish the INS and create an Office of Associate Attorney
General for Immigration Affairs (AAG). It also would create two Bureaus within
the Department of Justice: the Bureau of Citizenship and Immigration Services
and the Bureau of Immigration Enforcement. While the relationship between the
AAG and the two bureaus is unclear, it appears that the AAG would have
insufficient authority, especially when compared to the clout that the bill
would give to the Directors of the two Bureaus. The Directors of the two bureaus
would be charged with establishing immigration policy. In addition, while the
bill would separate the agency's competing functions, it provides little, if
any, coordination between the two.

The Bush Administration, while issuing a statement urging House passage of
H.R. 3231, noted its concern with several provisions in the bill, including the
weakened authority of the new AAG in comparison to the authority of the existing
INS commissioner.

The Kennedy/Brownback Bill: This bipartisan measure, entitled the
Immigration Reform, Accountability and Security Enhancement Act of 2002, would
dismantle the INS and establish in its place the Immigration Affairs Agency
(IAA) within the DOJ. A Director of Immigration Affairs who is tasked with full
responsibility and authority to administer the agency would head the IAA. The
bill also would establish a Bureau of Immigration Services and Adjudications and
a Bureau of Enforcement and Border Affairs, each headed by a Deputy Director.
The Kennedy/Brownback reorganization plan creates an immigration agency headed
by a Director with clout, separates and coordinates the enforcement and
adjudications functions, has clear lines of authority, and includes helpful
funding provisions. As such it is the only legislative proposal that fulfills
the criteria reviewed below.

In summary, both the Bush plan and the Kennedy/Brownback bill would place
someone in charge with clout and would separate, but coordinate, the agency's
two functions. H.R. 3231 does not create a strong central authority. Nor does it
provide for coordination between the two functions. The Ridge plan, by
consolidating INS enforcement and border functions with functions now housed in
other agencies, would separate these functions from adjudications, making a
consistent interpretation of the law and any coordination between the two
extremely problematic. The Ridge plan also appears to contradict the INS
reorganization plan that the Administration has advanced and has begun to
implement. That plan, in contrast to the Ridge border security plan, is based on
a strong central authority with direct lines of command over the enforcement and
adjudications functions.

INS REORGANIZATION WOULD AFFECT REAL PEOPLE

Any reconfiguration of our immigration function will work only if it
successfully serves real people. Here are some examples of why it is vital to
have a single person in charge and close coordination between adjudications and
enforcement:

The Border Patrol picks up a suspected illegal alien. He claims to be a
lawful permanent resident, but does not have his green card in his possession.
The Border Patrol needs to check his status with Adjudications before
determining whether to release or detain him.

Immigration Adjudications receives a petition for H-1B status and suspects
fraud. The INS Service Center wants to check on the employer's record with INS
and determine whether it has been found to hire undocumented workers in the
past. The Adjudications division would need to access enforcement records to
check on the employer's work site investigations records.

An applicant for adjustment of status claims to have no periods of unlawful
presence. The Immigration Adjudicator suspects otherwise based upon claimed
dates of entry. Without easy access to entry/exit records from Inspections, the
adjudicator cannot confirm her suspicions.

There is a discrepancy regarding whether the physical presence requirement
in an application for Temporary Protected Status (TPS) has been met. INS needs
to examine entry databases. Without easy access to those inspections records,
the application cannot be properly or efficiently adjudicated.

An individual applies for a green card after marrying a U.S. citizen. She
arrived legally, but overstayed her tourist visa. INS adjudications needs to
check with the enforcement branch to make sure there are no issues precluding
her from obtaining a green card.

A Canadian computer systems analyst applies for a TN visa at the U.S.-Canada
border. He has a minor conviction from 20 years ago for possessing a small
amount of marijuana. He needs a waiver under INA § 212(d)(3) to be able to enter
the United States. Under any reorganization, the service and enforcement
branches need to coordinate efforts to allow this person entry.

These examples underscore the need for restructuring to be based on the
principles discussed below.

PRINCIPLES THAT SHOULD GUIDE INS RESTRUCTURING

AILA believes that any successful reorganization of the INS must be based on
the following four criteria:

Appoint a high level person with clout to be in charge of both the
adjudications and enforcement functions.

Coordinate the separated enforcement and adjudications functions.

Provide adequate resources.

Ensure that a reorganized immigration function contributes to our national
security.

1. Appoint a high level person with clout to be in charge of both the
adjudications and enforcement functions. This person must integrate policy
making with policy implementation and lead and coordinate the separate service
and enforcement functions. Accountability and leadership must come from the
top.

A successful reorganization of our immigration functions hinges on the
appointment of one full-time, high-level person with line authority. Such an
office would improve accountability, especially critical after the September 11
terrorist attacks, by fully integrating policy making with policy
implementation, ensuring direct access to high-level officials within the
executive branch, attracting top managerial talent, having authority both
horizontally and vertically, and leading the efforts of the two bureaus.
Especially after September 11, it is vitally important that one person at the
top articulates a clear, coherent, and unified immigration policy within the
government, to Congress, and to the world.

Given this country's urgent need to maintain and upgrade its security, it is
now more pressing than ever to place one person in charge who is accountable so
that our laws are implemented quickly and fairly, rather than developing two
rival bureaucracies that will create balkanized immigration policies. Given this
need for accountability and coordination, AILA also would support placing the
inspections function in the office of the person in charge. Given that
enforcement and adjudications come together in the inspections process, it is
important that the person in charge oversees the exercise of this procedure and
that inspectors receive training in both adjudications standards and enforcement
procedures. In contrast, the Bush Administration plan and H.R. 3231 both would
place inspections in the Bureau of Enforcement.

The need for someone in charge of national policy with direct authority over
the two immigration functions is evident in other areas as well. For instance,
immigration enforcement officers interdicting or inspecting asylum seekers will
likely have a different interpretation than would immigration service personnel
as to whether the asylum seeker is eligible for protection under U.S. laws and
treaty obligations. One central authority would help ensure consistent
interpretations of the law.

2. Coordinate the separated enforcement and adjudications functions.

A consensus has been reached that separating the enforcement and
adjudications functions will lead to more clarity of mission and greater
accountability, which, in turn will lead to more efficient adjudications and
more accountable, consistent, and professional enforcement. The
Kennedy/Brownback bill, H.R. 3231, the Bush Administration's plan, and the Ridge
border security plan all are based on such a separation.

However, coordination of the two functions is as important as separation and
is key to a successful reorganization because enforcement and adjudications are
two sides of the same coin. Almost every immigration-related action involves
both enforcement and adjudicatory components. The INS's recent blunder in
notifying a Florida flight school regarding the agency's approval of student
visa applications for two of the now-deceased September 11 terrorists reinforces
the need for these two functions to be even more closely coordinated than they
are today. Only through such coordination will we achieve consistent
interpretation and implementation of the law, clarity of mission and, in turn,
more efficient adjudications and more effective, accountable, consistent, and
professional enforcement. Such coordination cannot be achieved merely by
creating a shared database. Inconsistent policies and interpretations of the
law, the lack of a common culture, and - most importantly - the absence of
someone in charge who can resolve differences, can turn routine referrals into
Kafkaesque nightmares.

The Kennedy/Brownback bill and the Bush Administration plan provide for this
coordination. H.R. 3231 and the Ridge proposal do not. While H.R. 3231 separates
enforcement and adjudications by creating two separate Bureaus within the
Department of Justice, there is little coordination between the two, save a
General Counsel placed in a weak Office of the Associate Attorney General. This
coordination is largely lacking because there is no high level official given
sufficient authority over the two bureaus who would be able to integrate shared
information systems, policies, and administrative infrastructure, including
personnel and training. The two bureaus likely would end up working at
cross-purposes, with the leaders from each sending conflicting messages on
policy matters pertaining to complex laws.

The absence of coordination can lead to inconsistent opinions and policies,
and result in each bureau implementing laws differently, thereby creating
ongoing difficulties. The absence of coordination will exacerbate these concerns
even more and raise additional questions. For example, since border inspections
combine both adjudications and enforcement functions, how will the many
different activities that take place at our ports of entry be handled? These
activities can include officials adjudicating asylum eligibility, granting final
admission as a legal permanent resident based on an immigrant visa, issuing
entry documentation, interdicting those ineligible to enter the United States,
and assisting in the interdiction of those engaged in trafficking activities.
Given the structure of H.R. 3231, these functions would not be organized,
integrated or coordinated.

Furthermore, how will Congressional staff be able to efficiently handle
requests for assistance on immigration matters? Without adequate coordination,
staff will be forced to deal with two separate bureaus that implement different
policies and practices, making their jobs much more difficult and
time-consuming.

3. Provide adequate resources for the adjudications and enforcement
functions and ensure that direct congressional appropriations are available to
supplement user fees.

As the reorganization debate continues, we urge Congress to review how
immigration functions have been and should be funded. Currently, enforcement
functions are supported by congressional appropriations, while adjudications are
largely funded by user fees. Since adjudications are as much in the national
interest as enforcement, adjudications should receive on an ongoing basis direct
congressional appropriations to supplement user fees. AILA supported the
establishment of the Examination Fee Account when it was first created. However,
given the history and status of that account, we have revised our views and urge
Congress to supplement user fees with congressional appropriations to ensure
that an appropriate level of service is achieved.

In addition, adjudication fees paid by applicants for immigration benefits
should be used solely to adjudicate those applications. In practice, a large
share of the user fees has been diverted to support other functions. Immigrants,
particularly when they already are experiencing lengthy delays and unacceptable
levels of service, should not be forced to pay for programs unrelated to the
processing of their applications. The responsibility for programs that do not
generate fees should be shared among all taxpayers.

Both the Kennedy/Brownback bill and H.R. 3231 include important first steps
in this area. But we believe that Congress should go beyond the measures
included in both bills and dramatically increase its appropriations role.

4. Ensure that a reorganized immigration function contributes to our
national security.

Our immigration function, whatever shape it takes, has an important role to
play in helping our nation enhance its security. To aid in that effort, a
restructured immigration agency needs a strong leader at the top who can quickly
undertake decisive actions, especially in periods of emergency. To be effective,
particularly in times of crisis, a reorganized agency also must have
accountability. Creating an agency with a weak position at the top, and
empowering the heads of two conflicting bureaucracies, as envisioned in H.R.
3231, is a recipe for conflict and dysfunction, especially in times such as
these when the need for quick and effective decision-making is essential to
protecting our national interests.

Any restructuring of our immigration function to enhance our security must
reflect the importance of both adjudications and enforcement and include
adequate funding for both. While the importance of enforcement is obvious in
this regard, the security-related aspects of adjudications have been downplayed
during the restructuring debate. As important as it is to enforce our laws as a
means to enhance our authority, it is equally crucial that we distinguish those
who mean to do us harm from those who seek entrance into our country, much as
our ancestors did, to help us build this nation. Provisions in the Border
Security and Visa Entry Reform bill reflect the importance of both functions and
the need to pay for initiatives in both areas. Any INS reorganization bill
should do the same.

Given our nation's enhanced security needs after the September terrorist
attacks, it is important that Congress and the Administration support direct
federal appropriations for the kinds of technological, staffing, and
infrastructure needs that both the INS (in its enforcement and adjudications
capacities) and the Department of State will require. The security agendas of
these two agencies cannot be supported through user fees alone. The enhanced
capacity to meet our security needs is an important national function best
supported through the federal government and will require such support on an
ongoing basis.

RESTRUCTURING MUST BE BASED ON RELIABLE INFORMATION

The information Congress needs to help determine the best reorganization plan
must be reliable. AILA urges Congress to seek this information from many
sources, including INS staff at headquarters and in the field and those who use
the agency's services. AILA member attorneys have much experience dealing with
the INS at headquarters and in the field (at service centers, district offices,
and ports-of-entry, for example). We stand ready to relay to Congress
information concerning the agency's failures and successes based upon the
hundreds of thousands of encounters our members have had with the INS over the
years.

Such anecdotal information serves a useful function. However, it is precisely
that: opinions of AILA members based upon their experiences. Rigorous study
would be needed to determine if these opinions are fact. The General Accounting
Office (GAO) did not exhibit such caution when it recently issued a report
entitled "Immigration Benefit Fraud: Focused Approach Is Needed to Address
Problems." The GAO report was supposed to review information on the nature and
extent of immigration benefit fraud at the INS.

Fraud should not exist within the INS or any agency. Immigration benefit
fraud threatens the integrity of the legal immigration system. It cannot and
should not be tolerated. Like the GAO, many, with good reason, have found fault
with INS management. Certainly, there is much room for improvement. We all want
an agency that works, and works well. However, any investigation of fraud must
be conducted fairly and use methods that are above question. Based on these
criteria, the GAO has failed. Its report presents opinions as facts, makes no
attempt to corroborate allegations raised, and portrays the INS's successful
efforts at fraud detection as examples of a broken system. In fact, the report
really is two reports: one focusing on alleged fraud based on uncorroborated
opinions, and the other detailing procedural changes from which any agency would
benefit.

What did we learn from this report?

The report repeatedly cites opinion as fact, appears to fault the INS
when the agency successfully detects fraud, and suggests that simply because the
agency has found fraud, such fraud is pervasive. Phrases such as "one
official told us," "views of INS officials," "district officials told us" and
similar attributions are repeated throughout the report, with anecdotal data
treated not only as fact, but as pervasive fact. In addition, when citing to
various instances of fraud throughout the report, the GAO, instead of crediting
the INS for having mechanisms in place that have been successful in uncovering
such fraud, criticizes the agency for the existence of the problem. The GAO
could have concluded instead that current INS procedures to detect fraud are
working. At the very least, these procedures are not as ineffective as the GAO
alleges them to be. Finally, the report's tone and conclusions do not reflect
what the GAO itself admits, that the "estimates provided by INS supervisors and
managers were not based on scientific studies."

The GAO has raised
serious charges. Such charges need to be based on fact, not allegations or
conjecture. There is room for improvement in any agency, especially the INS, but
any successful reform must be guided by accurate data.

The GAO report reinforces the need for someone in charge and a
reorganized agency that coordinates the two functions of enforcement and
adjudications. While not focusing extensively on INS reorganization, the GAO
emphasizes the importance of coordination in a reorganized agency that separates
the enforcement from the adjudications function: "Organizational crosswalks
would need to be devised to assure that the two primary functions were still
being effectively coordinated and balanced, that is that the enforcement
concerns were considered in performing service functions and vice versa. Our
intention is that these primary functions be coordinated and balanced,
regardless of how the agency is structured." (GAO report at pg. 34). The GAO's
recommendations also support the need for one person at the top who has the
authority to coordinate all activities and goals. Such coordination, achieved
both through the person in charge and through the structure of the reorganized
agency, is critical throughout the INS.

Importance of Adequate Funding for Adjudications: The GAO report was
silent on one of the most important issues needing to be addressed: the
importance of adequate funding for the INS in general, and adjudications in
particular. While the GAO criticizes the agency for doing too little to combat
immigration benefit fraud, the Service has not received adequate funding to
undertake this task in a comprehensive and effective manner. Especially in this
time of enhanced security, the INS needs the funding and technology that are
critical for the agency to do a good job. The report also raises concerns about
the INS's ability to balance its dual responsibilities of application processing
and fraud detection, and states that "unless INS can devote additional resources
to processing applications, its efforts to expedite application processing will
mean that the quality of adjudication will most likely be sacrificed." (GAO
report at pg. 27). Again, the most effective response to this concern is
adequately funding the agency so that the competing goals of quality and
timeliness can be achieved. Such funding must come from direct congressional
appropriations that would supplement user fees.

Importance of Enterprise Architecture and Information Technology: The
GAO report recognizes the importance of agency-wide case tracking, information
technology, and management capability to help ensure the effective use of
resources, and that necessary coordination occurs and accurate immigration
benefit decisions are made in a timely manner. The INS, recognizing that the
agency could achieve these goals through enterprise architecture and information
sharing, was moving in those directions even before September 11. Since that
date, the Service has accelerated work in those areas, which will help ensure
the quality of adjudications as well as enhance our security efforts. Once
again, adequate funding will be critical to the ability of the Service to
develop and implement the needed improvements.

CONCLUSION

INS restructuring is not a dry exercise involving reform of a government
bureaucracy. Decisions in this area will impact directly on our national
security, as well as the lives of hundreds of thousands of American citizens,
businesses, and legal immigrants who daily interact with this system. Making the
wrong decisions can weaken our security through less effective and unfair
enforcement, and result in unconscionable delays in citizenship processing,
reuniting families, and helping American business to acquire the workers they
need.

Mr. Chairman, thank you very much for this opportunity to share my thoughts
and perspectives with the committee. AILA remains available to discuss these
matters with you at any future time, and is dedicated to working with Congress
and the Administration to ensure that reorganization succeeds. Thank
you.